DIVORCE AND SEPARATION

Question 1

JURISDICTION: Residency Requirements

Answer 1

• To have jurisdiction over a divorce, only one of the parties needs to be domiciled (resident w/ intent to remain) in the jurisdiction.
• Most states set a min residency period (ex. 90 days) b/f an action may be filed.
• It is possible for multiple states to have jurisdiction over a divorce, & multiple cases could proceed until one ct renders a judgment causing other to lose SMJ
• To determine financial issues (like property rights & support), ct must have PJ over D

Question 2

In Rem Action

Answer 2

• Divorce is an in rem action; thus, certain types of constructive service (like publication) may be permitted.

Question 3

Recognition of Decree: Full Faith and Credit

Answer 3

• As long as one of the parties was domiciled in the state that granted divorce, decree is recognized as valid in all other states.
• Provisions of decree relating to property rights, spousal support, child support, & other financial issues are given full faith & credit only if ct had PJ over D

Question 4

Comity

Answer 4

• Cts are likely to recognize foreign divorce decrees if one party was domiciled in the country rendering the judgment.

Question 5

Mediation

Answer 5

• In some states, ct may refer parties to a divorce
  action to ct-approved mediation.
• A mediator is a neutral party who helps divorcing parties work through issues such as child support, custody, & visitation.
• Any agreement reached must be based on decision of parties & not decision of mediator, who may not advocate for either party/coerce a party to make a decision.

Question 6

Mediator Duties

Answer 6

• Mediators must:
  (1) Explain mediation process
  (2) Explain right to independent counsel to parties
  (3) Ensure that parties have enough info for informed
  decisionmaking
  (3) Remain impartial & disclose any potential bias
  (4) Control for any power imbalance between parties
• Mediator misconduct may result in ct setting aside agreement.
• All of the mediation proceedings & records are confidential

Question 7

GROUNDS FOR DIVORCE

Answer 7

• A decree of absolute divorce terminates marriage relationship.

Question 8

“No-Fault” Divorce

Answer 8

• Most state divorce statutes provide for no-fault divorce
• This usually requires a showing that:
  (1) Both spouses agree that marriage is irretrievably broken (also referred to as irreconcilable differences)
  (2) Parties have been living apart for a specified & continuous period of time.
• This period can range from 90 days to 18 months, & parties are still married during that time.
• The period is often shorter if both parties agree to divorce & longer for unilateral no-fault divorce.
  (3) Both parties agree they are now incompatible & can no longer be married.

Question 9

Fault Grounds

Answer 9

• Fault-based grounds for divorce are:
  (1) Adultery: Generally, filing spouse presents circumstantial evidence of opportunity & inclination.
• Corroboration is often required.
  (2) Willful desertion (or abandonment): This requires an unjustified departure from marital home for a specified period w/ no intent to return
  (3) Extreme physical/mental cruelty
  (4) Voluntary drug addiction/habitual drunkenness commencing after marriage
  (5) Insanity

Question 10

DEFENSES TO DIVORCE: No-Fault Divorce

Answer 10

• Only defense to no-fault divorce is to deny existence of one of the above grounds.
• One spouse may claim that a reconciliation restarted the clock for living separate & apart.

Question 11

Fault-Based Divorce

Answer 11

• Defenses to fault-based divorce are rarely used, but still exist:
  (1) Collusion: agreement between spouses to simulate grounds for divorce/to forgo raising a valid defense.
• In some jurisdictions, collusion will prevent the granting of a divorce.
  (2) Connivance: willing consent to other spouse’s misconduct.
• This is usually limited to adultery cases, & it has been abolished in many states.
  (3) Condonation: forgiveness of marital offenses w/ full knowledge of the wrongs.
• Restarting of marital relations after forgiveness is key element of defense.
  (4) Recrimination: arises when party seeking divorce is also guilty of misconduct for which a divorce
  may be granted.
• Rarely used.

Question 12

LEGAL SEPARATION

Answer 12

• An order of legal separation (sometimes called a “divorce from bed & board”) does not terminate marriage, but parties can have all of their rights regarding property, spousal support, custody, & child support adjudicated in this proceeding.
• If ct permanently divides marital property, then any after acquired property is separate property.
• A legal separation can usually be enlarged into an absolute divorce if parties so request.